N.J. Constitutional Convention: Vol. 4, Page 185

STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947COMMITTEE ON THE JUDICIARYWednesday, July 2, 1947 (Morning session)

of Errors and Appeals, and a year from that time the Court of Errors and Appeals sustained it, and then I had to go back and start my law action from scratch and go all over the whole matter again before I could get a judgment for damages. That is a typical example, a very simple example. It happens all the time.

Now, good pleading requires that you state facts in lucid, terse fashion, setting up a cause of action - and stop. If you do that in an integrated court, you don't have to worry about the jurisdiction; the whole thing will be disposed of, all defenses will be disposed of. That seems to me to be common sense.

I want to say that this effort of the Hendrickson Commission, made in 1942, is in my judgment on the whole a very, very well done job. I should like to bring to your specific attention some matters that I think ought to be changed or altered, just as an assistance, if it will be an assistance, because I think it is better to start with something pretty good than it is to start from scratch in a jumble of what we don't know about.

Now, you spoke of the prerogative writs. I think this Judicial Article in the 1944 Constitution is very vague and uncertain on the question of writs. Paragraph 2 of Section II says, talking about the Supreme Court: "The court may, by certiorari allowed by the court or any justice thereof, review any indictment, before trial, according to law." That's the first reference to writs.

In paragraph 4 of Section III: "Any justice of the Superior Court or an appellate division thereof may allow prerogative writs returnable in an appellate division which shall determine, in such manner as the rules of the Supreme Court may prescribe, and without a jury, questions of fact arising therein."

Now, it speaks generally of prerogative writs, and that I am afraid of; I want to see prerogative writs abolished or I want to see prerogative writs simplified to the point where one writ will do the job. I think there is grave confusion and there has been a great deal of flim-flaming of the public on the question of whether it shall be mandamus or quo warranto or certiorari. Any lawyer will tell you he gets in trouble with it all the time, and I am gravely troubled, if this Constitution is put in effect, or any other when these proceedings are over, that we may not be faced with the same proposition as we were faced with in the 1844 Constitution.

There are a thousand cases, but I cite New Brunswick v McCann in which the court held that you could not impair the right of the Supreme Court in its prerogative writ practice. It says: "Whatever powers these courts have, whatever jurisdiction they exercise, dated from the adoption of the Constitution, were by such adoption incorporated into fundamental law and insured against destruction except through a change in fundamental law itself. To abolish the